ASMP’s Best Practice for Social Networking Sites Part 3

Before offering our recommendations, it’s helpful to review the basic contours of the TOS. These are general areas of common ground, but you should review the specifics of each site’s TOS before posting.

The companies acknowledge that they are not getting a copyright interest in any of your photographs. (When discussing photographs, unless noted, the same would generally be true for any media).

Representative example from MySpace:

MySpace does not claim any ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials (collectively, “Content”) that you post on or through the MySpace Services. After posting your Content to the MySpace Services, you continue to retain any such rights that you may have in your Content, subject to the limited license herein.

However, the companies do get a royalty-free license to use the images posted until you either remove the content from the site or terminate your account.

Most, but not all, of the sites allow you to have some control over who will be able to view your posted content. For example, Photobucket makes posted content available to everyone — even nonmembers who are outside the Photobucket services — unless you mark your content as “private” and then it is available only through the Photobucket services. Facebook allows you to be even more restrictive. You can limit your audience to only those fellow Facebook members you’ve allowed to be labeled as “friends.”

Subject to any restrictions you may have chosen, the Companies can distribute their services through all media outlets.

There is also some common ground with respect to how the TOS discuss the rights of other users with respect to the content that you post.

Users are prohibited from infringing the IP rights, including copyrights, of others.

Users have a right to report copyright infringement to the company and the company has the right to take down infringing material and/or terminate the account of the infringer. (Termination is usually reserved for repeat infringers).

The procedure for reporting and acting on allegations of copyright infringement is very similar across all companies and seems to comply with the Digital Millennium Copyright Act (“DMCA”). (Several expressly state that they do comply with the DMCA).

However, in our view, many of the TOS could be more explicit in stating what others can and (more importantly) cannot do with the content posted by other users. Photobucket and YouTube are admirably clear in this regard. The Photobucket license provides a very broad licensing of rights using concrete examples:

Photobucket and/or other Users may copy, print or display publicly available Content outside of the Photobucket Services, including without limitation, via the Site or third party websites or applications (for example, services allowing Users to order prints of Content or t-shirts and similar items containing Content).

YouTube is equally clear in its more restrictive licensing of rights:

Content on the Website is provided to you AS IS for your information and personal use only and may not be downloaded, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposes whatsoever without the prior written consent of the respective owners.

The dramatic difference in the license rights granted by Photobucket and YouTube underscores the fact that you must read the TOS before posting your images.